Citation NR: 9616043
Decision Date: 06/04/96 Archive Date: 06/18/96
DOCKET NO. 92-18 431 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUE
Entitlement to an increased evaluation for a skin disorder of
the feet, currently evaluated as noncompensable.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
R. Acosta, Associate Counsel
INTRODUCTION
The veteran served on active duty from September 1965 to July
1967.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from a March 1992 rating decision of the
Department of Veterans Affairs (VA) St. Louis, Missouri,
Regional Office (RO), which denied an increased (compensable)
evaluation for the service-connected skin disorder of the
feet.
The veteran’s appeal was remanded by the Board in August 1994
and in July 1995, for the production of additional medical
records and for the performance of a VA dermatologic
examination. The requested developments have been performed
by the RO and the veteran’s appeal is ready for appellate
review.
Preliminary review of the record does not reveal that the RO
expressly considered referral of this case to the Chief
Benefits Director or the Director, Compensation and Pension
Service, for the assignment of an extraschedular rating under
38 C.F.R. § 3.321(b)(1) (1995). The United States Court of
Veterans Appeals (Court) has held that the Board is precluded
by regulation from assigning an extraschedular rating under
38 C.F.R. § 3.321(b)(1) (1995), in the first instance. The
Board is, however, not precluded from raising this question,
and in fact is obligated to liberally read all documents and
oral testimony of record and identify all potential theories
of entitlement to a benefit under the applicable law and
regulations. Floyd v. Brown, No. 92-970 (U.S. Vet.App. Apr.
17, 1996). In light of this mandate, the question of the
applicability of 38 C.F.R. § 3.321(b)(1) (1995) to the facts
of this case is referred back to the RO for such further
action as is deemed appropriate.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that an increased (compensable)
evaluation of the service-connected skin disorder is
warranted. He asserts that he was told by VA physicians that
this disorder will never be cured, but only controlled by
medication.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against an increased (compensable) evaluation for
the service-connected skin disorder of the feet.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran’s appeal has been obtained by the
agency of original jurisdiction.
2. The service-connected skin disorder of the feet is
currently manifested by a chronic tinea pedis diagnosis,
scaly plaques on the bottom of the feet, interdigital webs
with maceration, yellow, thickened toenails, and subjective
complaints of increased burning and itching, with a history
of skin disease dating back 25 years, allegedly worse during
wintertime.
CONCLUSION OF LAW
The schedular criteria for a compensable evaluation for the
service-connected skin disorder of the feet are not met.
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2,
4.7, 4.10, 4.118, Diagnostic Code 7806 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, the Board finds that, in accordance with
38 U.S.C.A. § 5107(a) (West 1991), and Murphy v. Derwinski, 1
Vet.App. 78 (1990), the veteran has presented a well-grounded
claim. The facts relevant to this appeal have been properly
developed and VA’s obligation to assist the veteran in the
development of his claim has been satisfied. Id.
The veteran has requested a compensable evaluation for the
service-connected skin disorder of the feet. After a review
of the record, however, the Board finds that the evidence is
insufficient to warrant a compensable evaluation for the
service-connected disability. Accordingly, the veteran’s
claim fails.
In a rating decision dated in November 1975, the RO granted
service connection for hyperkeratosis of the feet. A 10
percent evaluation was assigned, effective from March 1975.
In a rating decision dated in October 1980, the RO reduced
the evaluation of the service-connected skin disorder to
noncompensable, effective from May 1981. The veteran
appealed this decision, which was thereafter confirmed by the
Board, in a decision dated in August 1982.
In the rating decision hereby on appeal, dated in March 1992,
the RO denied a request for a compensable evaluation for the
service-connected disability. The Board remanded the
veteran’s appeal of this rating decision in August 1994,
instructing the RO to obtain the reports of recent VA
outpatient medical treatment for the skin disorder and to
conduct a dermatologic examination of both feet.
The report of a VA medical examination, dated in October
1994, only shows a general remark of hyperkeratosis of the
feet and an indication that the examiner should be a
dermatologist who should review the claims file before and
during the examination. No dermatologic examination was
conducted at that time, though.
A VA outpatient record, dated in November 1994, shows an
impression of tinea pedis.
In a rating decision dated in January 1995, the RO denied an
increased (compensable) evaluation for the service-connected
skin disorder. The veteran’s appeal was again referred to
the Board for appellate review.
The record shows that the Board remanded the case in July
1995, instructing the RO to conduct a dermatologic
examination, in accordance with VA’s Physician’s Guide to
Disability Evaluation Examinations.
The report of a VA dermatologic examination, dated in August
1995, shows that the veteran provided a history of a skin
disease for the past 25 years, worse during the winter. He
reportedly complained of increased burning and itching.
Scaly plaques on the bottom of the feet, interdigital webs
with maceration, and yellow, thickened toenails, were
objectively found. The diagnosis was chronic tinea pedis.
In a rating decision dated in October 1995, the RO continued
the noncompensable evaluation previously assigned, and the
veteran’s appeal was again referred to the Board for
appellate consideration.
Disability evaluations are based upon the average impairment
of earning capacity as determined by VA’s Schedule for Rating
Disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R.
§ 4.1, 4.10, Part 4 (1995) (Schedule). Separate rating codes
identify the various disabilities.
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating; otherwise, the lower rating will be
assigned. 38 C.F.R. § 4.7 (1995).
The evidence of record shows that the service-connected skin
disorder of the feet is currently rated as noncompensable
under Diagnostic Code 7806 of the Schedule. Such an
evaluation is warranted for eczema, with slight, if any,
exfoliation, exudation or itching, if on a nonexposed surface
or small area.
A 10 percent evaluation for the service-connected disorder
would be warranted under the same diagnostic code for eczema,
with exfoliation, exudation or itching, if involving an
exposed surface or extensive area. A 30 percent evaluation
would be warranted for eczema, with constant exudation or
itching, extensive lesions, or marked disfigurement. A 50
percent evaluation would be warranted for eczema, with
ulceration or extensive exfoliation or crusting, and systemic
or nervous manifestations, or exceptionally repugnant.
The Board has been unable to find medical evidence in the
veteran’s claims folder of eczema, with exfoliation,
exudation or itching, involving an exposed surface or
extensive area; of eczema, with constant exudation or
itching, extensive lesions, or marked disfigurement; or of
eczema, with ulceration or extensive exfoliation or crusting,
and systemic or nervous manifestations, or exceptionally
repugnant. Accordingly, the veteran’s claim for a
compensable evaluation for the service-connected skin
disorder of the feet fails.
ORDER
An increased (compensable) evaluation for a skin disorder of
the feet is denied.
JACK W. BLASINGAME
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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